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TMI Blog2009 (6) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... is no evidence on record that books of account and documents belonging to the assessee and found during the course of search in the case of Shri Subodhbhai M. Sanghvi were handed over to the AO of the present assessee - The main thrust of s. 153C of the Act is to empower the AO of the person searched to handover the money, gold, jewellery or other relevant articles/things or books of account or documents belonging to the other person to the AO of that other person and the AO of that other person is empowered to proceed against such other person to assess undisclosed income resulting from such money, bullion, jewellery and valuable articles or things, books of account or other documents - Appeal is allowed by way of remand X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. It is, therefore, prayed that the treatment/disallowance given by AO and confirmed by CIT(A) may please be reversed." 4. The appeal filed by the assessee numbering ITA No. 141/Ahd/2009 was late by 235 days. It filed an application in the form of affidavit giving following reasons for filing the appeal late: "1, the undersigned, Shri Vijay M. Vimawala, aged about 35 years, Hindu by caste, residing at 88, Someshwara Enclave, Udhna Magdalla Road, Surat on this 9th day of February, 2009 state as under solemn affirmation: (1) The order of CIT(A) for asst. yr. 1999-2000 was received on 14th March, 2008. The appeal was partly allowed by the order of CIT(A). (2) The appeal was therefore required to be filed before Hon'ble Tribunal on or before 13th May, 2008. (3) As the assessee contemplated that the Department would file an appeal before Hon'ble Tribunal. The assessee's chartered accountant advised assessee to file the cross-objection against Revenue's appeal and in this way assessee was advised that his interest for justice would be served. (4) Revenue has filed the appeal before Hon'ble Tribunal on 21st May, 2008 which was registered as Appeal No. 1789/Ahd/2008. Assessee also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and went to the root of the matter. 6. We have heard the learned Authorised Representative of the assessee and the learned Departmental Representative on the condonation of delay. After hearing the parties and in the interest of imparting substantial justice we condone the delay in filing the appeal by the assessee. Notwithstanding the issue regarding validity of assessment by invoking s. 153C of the Act is a legal issue and, therefore, the assessee is entitled to raise it as additional ground otherwise also in. the cross-objections. 7. The facts of the case are that a search and seizure operation under s. 132 of the Act was carried out at the residence of one Shri Subodhbhai M. Sanghvi on 22nd Dec., 2004. During the course of search two documents were found which related to the transactions carried out by the assessee. The details of the documents and their relevance are narrated by the learned CIT(A) as under: "The ground Nos. 2 to 4 relate to the assessment of capital gains on sale of property amounting to Rs. 1,34,000. The AO in this connection noted that search proceedings were carried out in the case of Shri Subodh Sanghvi in December, 2004 wherein two Satakhats were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act whereas the assessee is agitated against increasing the sale consideration to Rs. 1,34,00,000 from Rs. 93,72,555. The main ground the assessee has raised is a legal ground about validity of assessment under s. 153C of the Act, in addition to other grounds on merits of the case as taken in the cross-objections. 9. The learned Authorised Representative of the assessee submitted that there is no evidence on record that books of account and documents belonging to the assessee and found during the course of search in the case of Shri Subodhbhai M. Sanghvi were handed over to the AO of the present assessee. The AO of Shri Subodhbhai M. Sanghvi has written to the AO of the present assessee about the seizure of documents relating to the present assessee. In this regard he referred to p. 42 of his paper book wherein the AO of the present assessee has informed the assessee about the intimation received from the AO of Shri Subodhbhai M. Sanghvi. For the sake of convenience the two letters are reproduced below: "To The Dy. CIT, Central Circle-3, Surat. Sub: Intimation for initiation of proceedings under s. 153C of the IT Act in the case of Shri Vijay M. Vimawala, S-88, Someshw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because if reckoned from 23rd Nov., 2006 when the AO of the present assessee was intimated about seizure of documents, then the AO of the present assessee is empowered only to reopen the assessment of the asst. yr. 2001-02 and not of prior assessment years. He invited our attention to s. 153C of the Act and proviso thereof according to which assessment in the case of other person can be reopened as provided under s. 153A of the Act but the date for reckoning of six prior assessment years would be the date when books of account and document were handed over by the AO of the person searched to the AO of the other person in respect of whom books of account/documents/money/bullion/jewellery or valuable articles/things were found. As contrast, the date of reckoning for accounting six prior assessment years would be the date of search in the case of the person searched. 11. According to him the reopening of the assessment under s. 153C of the Act is, therefore, invalid. 12. On the other hand, the learned Departmental Representative submitted that the fact as to when the books of account or documents relating to the present assessee for handing over to the AO of the present assessee are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that other person is empowered to proceed against such other person to assess undisclosed income resulting from such money, bullion, jewellery and valuable articles or things, books of account or other documents. 15. The proviso introduced by Finance Act, 2005 w.e.f. 1st June, 2003 makes a change in the date for reckoning the initiation of assessment proceedings of earlier years in the case of other person. In the case of person searched provisions of s. 153A of the Act are applicable. Provisions of sub-s. (1)(b) empowers the AO to assess or reassess total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. Accordingly, the AO can issue notice under s. 153A of the Act for six preceding assessment years following prior to the previous year in which search is conducted. In the present case search in the case of Shri Subodh Sanghvi was conducted on 20th Dec., 2004, then in his case, the AO is empowered to initiate the proceedings for assessment/reassessment for the asst. yrs. 2004-05, 2003-04, 2002-03, 2001-02, 2000-01 and 1999-2000. It is because the assessment year relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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